Returning bottles to the Beer Store? Beware of possible breath test by police

WATCH ABOVE: New federal rules in force since December could see police coming to your home or your drinking establishment and insisting you provide a breath sample. Some lawyers say they are worried. Sean O'Shea reports.

Taking back bottles to the Beer Store? A Mississauga man discovered this past weekend that it can lead to a breath test for alcohol by police.

“He said, ‘I saw you at the Beer Store and to me you were taking back, what looked like in my opinion, an excessive amount of bottles,’” said Art, a 70-year-old Streetsville resident. He asked Global News not to use his surname.

At around Noon on Saturday, Art went to his local Ontario Beer Store and returned about three dozen beer bottles and 10 wine bottles, which his family had accumulated over the holiday season.

Minutes later, Art said he was pulled over in a traffic stop by a police officer who asked if he’d been drinking. He said he had not.

During the discussion, Art said the officer demanded a roadside breath sample. He asked what would happen if he did not provide it. The officer told him he would face arrest, a criminal charge, and a licence suspension.

Art agreed to provide the breath sample, passed the test, and was on his way.

“I felt like I was violated in a way. They shouldn’t have that right to pull a person over unless there is a good sign the person is doing something wrong,” said Art, who was not using a cellphone, hadn’t been speeding or violating any traffic rules.

He was not charged with anything during the stop, which occurred a few blocks from the beer store where the police officer had been watching him.

Until the change, which came into effect in December, Canadian police required reasonable suspicion a driver had alcohol in their bloodstream before insisting on a breath sample. Changes to federal legislation now permit police to demand a sample without cause.

“What I want all Canadian drivers to understand is the likelihood of getting caught, should you make the criminal choice to drive under the influence of alcohol or drugs, the likelihood is about to increase exponentially because the police have new authorities and new tools,” said Bill Blair, Minister of Border Security and Organized Crime Reduction, in an announcement on Dec. 4. Blair is also a former chief of police in Toronto.

“Police do not need any evidential basis whatsoever to demand a sample,” said Joseph Neuberger, a Toronto-based criminal defence lawyer, who said the Peel Regional Police officer was well within his new rights to demand a sample after Art dropped off his empties at the beer store.

Breath demand after dumping the empties! Art is the man who wrote me the email. I went to his home today. My radio colleague @KellyCutrara called him and criminal lawyer Joe Neuberger @NeubergerLaw. Great interviews! Listen. https://t.co/PHkF4YKcHr

However, Neuberger expressed deep concerns over the changes, which give police powers to ask for breath samples even when someone is no longer driving or near their vehicle.

It’s part of another section of the legislation, which states that any driver “commits an offence who has within two hours after ceasing to operate a motor vehicle” is still over the legal alcohol limit.

Neuberger said under the rules, nothing stops police from going to a someone’s home, or to a bar, to demand a sample from someone under suspicion of driving under the influence of alcohol.

“They’re driving on the road, they’re heading home and they arrive at home, go in to watch the hockey game, crack open a few bottles of beer or have a scotch or something,” he explained.

“A person who saw the person driving has called it in, police arrive at the house, knock on the door, person answers the door and they say, ‘Sir, we have had a complaint about your driving, we need you to provide a roadside sample.’

If the person refuses to provide the sample, he or she could be charged.

He also said police could approach a driver in a drinking establishment and make the same demand.

“It’s a very draconian rule, a very significant invasion of privacy,” said Neuberger.

Neuberger said he believes the new provisions are troubling and will likely be tested, and possibly overturned, in courts.

“This isn’t about the carnage on the roads, it’s about civil liberties,” he said.

“How far do we want to go that we up our rights to privacy to ensure some protection against a danger?”